Snowstone, LLC Act 250 Jurisdictional Opinion Appeal (#2-308), 112718 VTSUP, 151-11-17 Vtec

Docket Nº151-11-17 Vtec
Opinion JudgeThomas S. Durkin, Superior Judge
Party NameSnowstone, LLC Act 250 Jurisdictional Opinion Appeal (#2-308)
Case DateNovember 27, 2018
CourtSuperior Court of Vermont

Snowstone, LLC Act 250 Jurisdictional Opinion Appeal (#2-308)

No. 151-11-17 Vtec

Superior Court of Vermont, Environmental Division

November 27, 2018


Thomas S. Durkin, Superior Judge

Jason Snow, working through his limited liability company, Snowstone, LLC ("Snowstone") is a stone mason, excavator and contractor, living and working in the Central Vermont towns of Springfield, Chester, and surrounding communities. When Mr. Snow was anticipating the exhaustion of his supply of dimensional stone from his existing small quarry, he was told of another small stone quarry, now dormant, that may have quality dimensional stone. The owners of the large parcel of land on which this small quarry was located-Justin and Maureen Savage- approached Mr. Snow to determine his interest in purchasing the portion of their land upon which the stone quarry was located. The parties then agreed to investigate how Mr. Snow may be permitted to excavate the stone on the Savages' property.

Mr. Snow and Mr. Savage determined that the stone could be excavated using only a 0.64-acre portion of the Savages' property. Because the stone was located some distance within the Savages' property, the parties determined that Mr. Snow would also need an access easement over the Savages' land. It was later determined that a sixteen-foot wide access easement to the stone quarry would only cover an additional 0.29 acres of the Savages' land, meaning that access to the quarry and the area needed to extract the stone would cover only a 0.93-acre portion of the Savages' land. The parties thereafter contracted for the Savages to sell the stone extraction site and access easement to Snowstone.

With this information in hand, Mr. Snow sought a jurisdictional opinion from the District #2 Environmental Commission Coordinator ("District Coordinator") to determine whether the proposed extraction of dimensional stone from the Savages' property would be subject to Act 250 jurisdiction. The District Coordinator responded with his opinion (JO #2-308), concluding that the Savages' sale of a 0.93-acre portion of their land to Snowstone was not an arm's length transaction, and that therefore Act 250 jurisdiction would attach to the entire Savage parcel, if the dimensional stone extraction project was pursued as documented in the parties' purchase and sale agreement. Snowstone thereafter appealed the District Coordinator's determination to this Court.

Snowstone is represented in this appeal by its attorneys, Lawrence G. Slason, Esq. and Samantha Snow, Esq.

The following area residents have concerns about the proposed project and therefore entered their appearance as Interested Persons; they have been assisted in this appeal by their attorney, Merrill E. Bent, Esq.: Bruce and Linda Watson, Izzet and Sandy Haci, Kim and James Bergeron, Ellen and Edward Beatty, Kern Svetlana Phillips, Paul Hogan, Maryellen and James Wichelhaus, Teresa Harrington, Judy and Dan Massey, Joe Calzone, Marcia Packlick, and Jack Munson. These Interested Persons are hereinafter referred to as "the Neighbors."

Windsor County Properties, LLC, an owner of another area property, also appeared as an Interested Person and is assisted by its attorney, Barry J. Polidor, Esq.

The Natural Resources Board has also filed an appearance in this matter and is represented by its attorney, Greg Boulbol, Esq.

Snowstone, the only party to file an appeal in this matter, filed a Statement of Questions listing the following legal issues: 1. Does the proposed stone quarry constitute "development" for a commercial purpose on more than one acre of land in Cavendish, Vermont, for the purpose of determining Act 250 jurisdiction?

2. Is the entire tract considered to be owned by a single "person" for the purpose of determining Act 250 jurisdiction?

Appellant Snowstone's Statement of Questions, filed December 6, 2017, at 1.

As the parties completed the discovery process and prepared for a de novo hearing, the Court encouraged them to investigate a voluntary resolution of their disputes. When those efforts were unsuccessful, and the parties had advised the Court that they had completed the discovery process, the Court set the matter for trial. Prior to the trial, the Court conducted a site visit with the parties on May 11, 2018.

The trial was scheduled to be conducted over two days, May 17 and 18, 2018, at the Vermont Superior Courthouse in Newfane, Vermont. However, after Snowstone had completed the presentation of its case in chief on May 17, 2018, Snowstone proposed, and the Neighbors agreed, that the Court should first address two of the legal issues presented in the appeal, since the manner in which the Court addressed those initial legal issues would determine how, and whether, legal issues which the Neighbors intended to present could be presented in any remainder of the trial.[1]

Based upon the parties' representations, and upon its own understanding of the issues presented, the Court issued an Interim Order in which it established deadlines for the parties to file post-hearing legal memoranda. See In re Snowstone, LLC Act 250 JO Appeal, No. 151-11-17 Vtec (Vt. Super Ct. Envtl Div. June 14, 2018) (Durkin, J.). Of particular note in the Court's Interim Order is that at the close of Snowstone's case in chief, the Neighbors "represented that they did not have testimony or other evidence to contradict Snowstone's evidence concerning the revised Purchase and Sale agreement and the assertion that the proposed sale would be an 'arm's length' transaction." Id. at 3.

In its Interim Order, the Court advised that "it would first determine whether the Savage-Snowstone transaction is an 'arm's-length' transaction and whether the Sellers retain sufficient ownership and control of the Snowstone parcel, such that the Sellers and Snowstone should be considered a single 'person' for purposes of Act 250 jurisdiction." Id. at 3-4.

The Court also established a schedule for Snowstone to submit any necessary stormwater and discharge permit applications with the Vermont Agency of Natural Resources and its subdivisions. Once a determination has been made on Snowstone's applications for any necessary stormwater and discharge permits, or a determination that no such permits are required for this project by applicable law and regulations, any party to this appeal may: [R]equest that the Court conduct a further hearing on whether any stormwater permit determination has a relevancy to the legal issue of whether all activities necessary for the operation of the proposed quarry can occur within the 0.93± acres that Snowstone proposes to purchase. In the event that such a request is made, the Court will schedule a further hearing.

Id. at 5, ¶8. The Court would then render a final decision and judgment order. Id.

"If no party requests a further hearing, the Court advised that it would then issue a judgment order, without further hearing, based upon the determinations rendered in this Merits Decision on Initial Bifurcated Issues." Id. at 6, ¶9.

With this somewhat unique procedural process in mind, we now turn to an adjudication of the initial factual and legal issues before us.

Findings of Fact

Based upon the credible evidence presented in this first phase of our proceedings in this jurisdictional opinion appeal, including the evidence that was put into context by the site visit that the Court conducted with the parties, we hereby render the following findings of fact.

The Savage Property and its Surrounding Neighborhood

1. Mr. and Mrs. Savage own a 176-acre parcel of undeveloped property located at the northwestern end of Tierney Road in Cavendish, Vermont. Their property is located in a very rural portion of the mostly rural Town of Cavendish. Route 131 dissects Cavendish east to west; Tierney Road lies north of Route 131, off of an elongated loop road known as High Street that intersects with Route 131 at the northeastern and southwestern termini of High Street.

2. Tierney Road is a dirt road that is sparsely populated. Within approximately a half mile from the Savages' property, the western side of Tierney Road is developed with larger single-family homes on larger lots. There is no commercial or industrial development in the vicinity of the Tierney Road homes.

3. The Savages purchased their Tierney Road property to build their own single-family home. The Savages intend to occupy this property as their primary residence. Mr. Savage testified that they intend to use and occupy the property as their "forever home."

4. The Savages expressed no prior intention to subdivide or sell off a portion of their Tierney Road property. They had no prior knowledge of, or association with, Mr. and Mrs. Snow or their...

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